Washington Times - Minimizing Authority of Judges

Op-Ed

I, like anyone else, whether a member of Congress or a parent, am concerned with the well-being of our children. We all want to keep our families and our communities safe. We want to see violent predators and criminals put behind bars and punished for the harm they do to others and to society.

Judges will tell you that current federal sentencing laws - known as mandatory minimums - don't actually do anything to keep us safer. In fact, judges will tell you that mandatory minimums do much harm to taxpayers and to individuals, who may have their lives ruined for a simple mistake or minor lapse of judgment.

Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal. This approach leads to our second problem: Washington's habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.

Last year in my community, a family lost one of their sons to an overdose. They almost lost their other son to a mandatory minimum sentencing. Federal law requires a mandatory 20-year sentence if a death occurs, even an accidental one. If prosecutors had charged the surviving brother in federal court, he would have received a mandatory 20-year sentence.

When a crime is committed, it should fall to the local prosecutor, judge and jury to determine the guilt or innocence, as well as determine the just punishment for the crime. In the current system of federal mandatory-minimum sentencing, the authority is taken away from the jury and judge, and given by the legislature to the executive. Prosecutors already have tremendous power because they collect the evidence and choose which crimes to charge. If a mandatory penalty is attached to that crime, the prosecutor then exerts much influence over the entire procedure, including the sentence.

Our Founding Fathers went to great lengths to prevent the executive and prosecutors from obtaining too much power. The Fourth Amendment was written to stop overzealous searches, and the Fifth and Sixth Amendments were written to establish full due process as an inalienable right.

Ignoring these rights comes with several tangible costs. In the last 30 years, the number of federal inmates has increased from 25,000 to nearly 219,000. That is nearly a 10-fold increase in federal prisoners, each of whom cost the taxpayers $29,027 a year to incarcerate. The federal prison budget has doubled in 10 years to more than $6 billion.

Half of the people sentenced to federal prison are drug offenders. Some are simply drug addicts, who would be better served in a treatment facility. Most are nonviolent and should be punished in ways that do not require spending decades in a federal prison, with meals and health care provided by the taxpayers.

For these reasons and others, last week I joined my colleague Sen. Patrick Leahy, Vermont Democrat, in introducing a bill that would authorize judges to disregard federal mandatory-minimum sentencing on a case-by-case basis.

Some might think it is unusual for a conservative Republican to join a liberal Democrat on such a bill, but contrary to popular belief, the protection of civil liberties and adherence to the Constitution should be a bipartisan effort.

Mandatory minimums have also had a disproportionate effect on the African-American community, and this community and its representatives in Congress have been the most vocal in support of reforms. These reforms are not "soft on crime," and call for nothing more than safe streets, schools and neighborhoods. Like me, these reformers oppose mandatory-minimum sentences that send their fathers, mothers, brothers and sisters to prison for nonviolent crimes. Oftentimes when this happens, families lose sources of income and support, communities are torn apart, and less money is available for community police and other effective crime-fighting tools.

I will speak more about this in a speech I am giving at Howard University on April 10. I hope to engage conservatives and liberals in a discussion of how the federal government should handle mandatory minimums and the reforms needed to secure our Fourth, Fifth and Sixth Amendment rights. How much of our liberty are we willing to yield to the government in the name of a false sense security? This is a debate that crosses many issues, and deserves full and fair exploration.